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At Issue Waiver of Attorney-Client Privilege

Alexander R. (Alec) Rothrock, Ethics and Professional Responsibility in the New Millennium (2000)

The attorney-client privilege is revered but not absolute. A party may waive the protection of the privilege, both expressly and by implication. The burden of proving waiver is on the party seeking to overcome the privilege.1

One form of waiver is variously called the “at issue waiver,” “implied waiver,” or the “issue injection exception.”2 For at issue waiver to apply, the party asserting privilege must place in issue a confidential communication going directly to the claim or defense.3 The at issue waiver recognizes that it would be “inequitable to permit the party to use the attorney-client privilege as a sword by placing the advice of the attorney at issue while permitting the same party to use the attorney-client relationship as a shield to prevent inquiry into the asserted claim or defense.”4

At issue waiver is controversial and often complex. The case law is not consistent. Colorado has adopted a standard that is widely followed in other jurisdictions yet criticized in other jurisdictions as insufficiently protective of the attorney-client privilege. This article discusses the state of the law on at issue waiver in Colorado and in the U.S. District Court for the District of Colorado. It then discusses the most difficult issue in the at issue waiver analysis, namely determining whether the party asserting privilege has indeed injected protected communica